THE attorney general (AG) has asked the Supreme Court to deem an appeal by Anti-Corruption Commission (ACC) Assistant Investigator Bonginkhosi Dlamini abandoned, citing his failure to file heads of argument and correct the record before the scheduled hearing.
Dlamini is appealing against a High Court judgment delivered on May 28 which dismissed his application challenging the continued acting appointment of Maphevu Mkhatshwa as ACC Commissioner, his suspension and decisions allegedly taken by Mkhatshwa after June 21, 2024.
According to the founding affidavit deposed to by attorney Sinaye Zwane of the attorney general’s chambers, Dlamini has failed to comply with Rule 37 of the Supreme Court rules by not filing his heads of argument and bundle of authorities.
The AG argues that the documents should have been filed by August 19 ahead of the appeal hearing scheduled for September 17.
The AG further alleges that Dlamini has failed to address objections raised against his record of appeal, which was filed on June 15.
The respondents lodged their objection on June 18 following a letter dated June 17 raising various grounds concerning the record.
Zwane said Dlamini had also failed to amend the record, bring an application for condonation or take other steps to remedy the alleged defects despite being aware of the objections.
On August 25 the AG filed an application seeking an extension of time to deliver the respondents heads.
The respondents subsequently filed and served their heads on August 28 after being advised by the registrar that the extension application would be heard together with the main appeal. The attorney general now argues that Dlamini’s continued failure to comply with the rules amounts to constructive abandonment of the appeal.
“The gravamen of the present application to deem the appeal abandoned is firmly grounded upon the Dlamini’s continuous and systemic non-compliance with the procedural rules of this honourable court,” reads part of the affidavit.
According to the application, Rule 37 requires an appellant to file six copies of his heads of argument with the registrar and serve a copy, together with a bundle of authorities, on the respondents no later than 20 days before the hearing.
The respondents are required to file their heads 15 days before the hearing. The attorney general argues that the deadlines are designed to ensure that parties have sufficient time to prepare and respond to issues raised in an appeal.
“With the hearing of this matter now a mere seven days away, the respondents have been severely prejudiced and stripped of this procedural right,” Zwane states.
The respondents argue that Dlamini’s failure has left the appeal at a stalemate and has caused prejudice because they are unable to fully address the issues raised in the appeal without his heads of argument.
They maintain that although a litigant has a constitutional or statutory right of appeal, that right does not exempt the litigant from complying with the Supreme Court rules.
The respondents further rely on Rule 18, which provides for abandonment of an appeal and Rule 60, which empowers the Supreme Court to adopt an appropriate procedure where the rules do not expressly provide for a particular matter.
The appeal itself arises from Dlamini’s challenge to Mkhatshwa’s acting appointment as ACC Commissioner and his suspension.
In their heads of argument, the respondents ask the Supreme Court to dismiss the appeal and uphold the High Court judgment.
The respondents argue that Mkhatshwa is not the substantive ACC Commissioner, but only acting, with his substantive position being deputy commissioner.
They contend that Section 7(1) of the Prevention of Corruption Act permits a deputy commissioner to act as commissioner when the office is vacant, absent or the commissioner is unable to perform his duties.
They further argue that the act does not impose a six-month limit on an acting appointment.
The respondents say the second appointment of Mkhatshwa on June 20, 2024 for an indefinite period was therefore lawful because the commissioner’s office remained vacant.
They also rejected Dlamini’s argument that a government circular limiting acting appointments to six consecutive months overrides the prevention of corruption act.
On Dlamini’s suspension, the respondents argue that the acting commissioner had authority to discipline and suspend ACC officers.
The respondents maintain that the power to administer the commission includes the authority to suspend investigating officers facing criminal charges arising from their duties. They argue that Dlamini’s suspension was lawful and that his challenge to decisions taken after June 21, 2024 essentially duplicates his suspension challenge.
The attorney general is asking the Supreme Court to dismiss the appeal with costs.
Dlamini has been given until today to file a notice of intention to oppose the application and any answering affidavit. The main appeal is scheduled for September 17.
